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  • Writer's pictureBrenden OSullivan

Understanding the Role of Health Power of Attorney in UK Law

Essential Aspects of Lasting Powers of Attorney

Definition and Importance

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more individuals, known as attorneys, to make decisions on your behalf should you lose the capacity to do so. It is a proactive step to ensure that your wishes are respected and that the people you trust are in charge of your affairs.

The importance of an LPA cannot be overstated. It provides a safety net, allowing you to plan ahead for a time when you may not be able to express your own decisions due to illness or incapacity. This foresight offers not only peace of mind to you but also clarity and guidance to your loved ones during potentially difficult times.

Understanding the significance of an LPA involves recognising the potential challenges that may arise without one. Without an LPA, there could be delays and additional stress for family members trying to manage your affairs. Moreover, the absence of an LPA could lead to disputes or the need for court intervention to appoint a deputy to make decisions on your behalf.

Types of LPAs: Health and Welfare vs Property and Financial Affairs

In the UK, there are two distinct types of Lasting Powers of Attorney (LPAs) that cater to different aspects of your life: one for Health and Welfare and another for Property and Financial Affairs. Understanding the differences between these LPAs is crucial for ensuring your affairs are managed according to your wishes, should you become unable to make decisions yourself.

  • A Health and Welfare LPA allows your appointed attorney to make decisions about your medical care, living arrangements, and daily routine, but only if you lack the mental capacity to make these decisions on your own.

  • A Property and Financial Affairs LPA empowers your attorney to handle your financial matters, such as managing bank accounts, paying bills, and dealing with property transactions.

By appointing attorneys for both areas, you can ensure that your financial assets are managed effectively and that your personal welfare is looked after, in accordance with your preferences and best interests.

The Process of Making an LPA

Creating a Lasting Power of Attorney (LPA) is a forward-thinking step that ensures your wishes are respected if you become unable to make decisions for yourself. The process involves several key stages and legal checks to safeguard your interests. Firstly, you must choose who you want to appoint as your attorney, someone you trust to make decisions on your behalf. This can be a family member, a friend, or a professional.

Once you've decided on your attorney, you'll need to complete the LPA form, which outlines the extent of the powers you are granting. It's crucial to be clear about what decisions your attorney can make for you, and under what circumstances. Here's a simple list to guide you through the process:

  • Obtain the LPA form, either online or from a legal advisor.

  • Decide on the type of LPA: Health and Welfare, or Property and Financial Affairs.

  • Choose your attorney(s) and discuss your wishes with them.

  • Complete the LPA form with details of your decisions.

  • Have your mental capacity certified by a professional or someone who has known you for two years.

  • Register the LPA with the Office of the Public Guardian.

It's important to note that you can revoke the LPA at any time while you still have mental capacity. Additionally, you can place conditions on its use. The Office of the Public Guardian currently takes approximately 20 weeks to process LPA applications, so it's advisable to plan ahead.

The Scope of Health and Welfare Lasting Power of Attorney

Decisions Covered by Health and Welfare LPA

When you establish a Health and Welfare Lasting Power of Attorney (LPA), you are entrusting someone with the authority to make a wide range of decisions on your behalf. This type of LPA becomes active only when you are no longer able to make decisions for yourself, ensuring that your welfare remains in trusted hands.

The scope of decisions includes, but is not limited to:

  • Your daily routine, such as diet and dress

  • Medical care, including hospital, residential care, or home treatment

  • Living arrangements and housing

  • Participation in social and leisure activities

Remember, the LPA for health and welfare is distinct from the Property and Financial Affairs LPA, which can be used while you still have mental capacity, with your consent. By making a Health and Welfare LPA, you can avoid potential disputes and ensure that decisions about your care and treatment are made without the need for a court application.

When Can an Attorney Make Decisions?

The authority of your attorney under a Health and Welfare Lasting Power of Attorney becomes active once you lose the ability to make decisions for yourself, known as 'losing mental capacity'. This ensures that the person you have entrusted can step in without delay, respecting your wishes and acting in your best interests.

  • Your attorney can only make decisions once the LPA is registered with the Office of the Public Guardian and you have lost capacity.

  • Decisions can range from daily care to complex medical treatments, depending on the permissions granted in the LPA.

  • The attorney must always act within the legal framework, prioritising your welfare and adhering to the principles of the Mental Capacity Act 2005.

Life-Sustaining Treatment: Powers and Limitations

When you appoint a Health and Welfare Attorney through a Lasting Power of Attorney (LPA), you have the option to grant them the authority to make decisions about life-sustaining treatments on your behalf. This could range from medical interventions to surgical procedures. The gravity of such decisions cannot be understated, as they may involve measures like resuscitation or life support.

The power you grant to your Attorney regarding life-sustaining treatment can be specifically included or excluded in the LPA. Here's a brief overview of what this entails:

  • The Attorney can give or refuse consent to life-sustaining treatments.

  • You can specify whether you want to include a 'Do Not Resuscitate' (DNR) order.

  • The authority of the Attorney continues as long as the LPA is active and not revoked.

Remember, the authority to make decisions about life-sustaining treatment is a profound responsibility and should be considered carefully when drafting your LPA.

Property and Financial Affairs Lasting Power of Attorney

Managing Finances and Property

When you appoint an attorney under a Property and Financial Affairs Lasting Power of Attorney (LPA), you are entrusting them with a significant responsibility. This includes the management of your financial affairs and property, ensuring that your bills are paid, and your investments are handled wisely. It's crucial to understand the extent of the powers you're granting.

Your attorney's duties might encompass a range of activities:

  • Managing bank and building society accounts

  • Paying bills and collecting pensions

  • Buying or selling property

  • Handling mortgage payments

  • Investing money

  • Overseeing property repairs

You have the flexibility to set limits on the powers of your attorney, specifying what they can and cannot do. This can be a safeguard to ensure that your interests are protected.

Using the LPA While the Donor Retains Capacity

It's a common misconception that a Lasting Power of Attorney (LPA) is only for those who have lost mental capacity. In reality, you can grant your attorneys the authority to act on your behalf while you still have full capacity. This can be particularly useful in managing complex financial affairs or if you're abroad for extended periods.

  • With your explicit consent, your Property and Financial Affairs LPA can be activated even while you retain mental capacity.

  • You maintain the right to oversee and intervene in the decisions made by your attorneys.

  • The LPA can be tailored with specific instructions or restrictions to suit your preferences and needs.

The authority granted by an LPA is a powerful tool that continues throughout your lifetime, unless revoked. It's crucial to understand that the authority ends upon death, and different legal processes come into play. Planning ahead and making an LPA now can save your family from a lengthy and costly process later on.

The Role of the Office of the Public Guardian

The Office of the Public Guardian (OPG) plays a crucial role in the registration process of Lasting Powers of Attorney (LPAs). Without the registration by the OPG, which can take approximately 26 weeks as of March 2024, your Attorneys will not have the legal authority to make decisions on your behalf. This can be particularly problematic if you urgently require medical care or if your Attorneys need to manage your finances for day-to-day living.

It's important to note that the original LPA document, along with any copies, must be readily accessible to your Attorneys. These are essential when they need to act on your behalf, and additional copies can be obtained from the OPG for a fee. During the registration phase, any errors in the documents must be corrected properly to avoid rejection. If amendments are needed, they should be made with care to ensure the integrity of the document is maintained.

Appointing Attorneys and the Registration Process

Choosing the Right Attorney

When it comes to appointing attorneys for your health and welfare, selecting the right individual is crucial. This person will be making decisions on your behalf, so it's essential they understand your values and wishes. You can appoint one or more people over the age of 18, who may be family members, friends, or even professional attorneys like solicitors or accountants.

  • The attorney should be someone you trust implicitly.

  • They must be willing and able to act in your best interests.

  • It's advisable to discuss your wishes with them beforehand.

Remember, appointing attorneys through an HW LPA avoids court intervention and ensures that decisions made align with your values. If you're considering using regulated legal professionals for lasting powers of attorney, it's a step that can provide additional reassurance.

The Legal Requirements for LPA Registration

To ensure your Lasting Power of Attorney (LPA) is legally binding, certain criteria must be met during the registration process. You must be 18 or over and possess the mental capacity to make your own decisions when creating your LPA. This is a crucial safeguard, confirming that you understand the implications of setting up an LPA and are doing so without any undue influence or pressure.

The certification process is a key legal requirement. A certificate provider, who could be a solicitor registered to practise law in Scotland or a registered UK medical doctor, must confirm that you have the necessary mental capacity. They will conduct an interview with you and complete a statement to this effect before the LPA can be registered.

All parties involved must sign the LPA documents in the correct order. Once registered, any amendments to the LPA will require a new form and the payment of the registration fee again. Therefore, it's essential to review the LPA form thoroughly before submission to avoid future complications.

Costs Associated with LPA Registration

Once an LPA has been registered, you will not be able to amend or change it without having to complete a new form and pay the registration fee again. It is crucial to thoroughly check the form before submission to the Office of Public Guardian. In certain situations, family members can apply to become a Deputy to share responsibilities during challenging times. The registration fee for an LPA in England and Wales is £82 per LPA, totaling £164 for both Property and Financial Affairs LPA and Health and Welfare LPA. LPAs offer enhanced protections by requiring certification of mental capacity and freedom from coercion or fraud. Our experienced team provides professional LPA services at competitive fixed rates.

Challenges and Considerations in Lasting Powers of Attorney

Potential Misuse of Powers by Attorneys

When you grant someone the authority to act as your attorney under a Lasting Power of Attorney (LPA), you place a significant amount of trust in their hands. It's crucial to understand that while attorneys are empowered to make decisions on your behalf, they are bound by legal obligations to act in your best interests. However, there have been instances where this power has been misused.

Attorneys have a limited power to make gifts on behalf of the Donor in limited circumstances. For any large or unusual gifts, an application to the Court of Protection will be required. They must also keep full accounts and records of their actions, ensuring the Donor's assets are protected. If you suspect misuse of power, it's important to know the steps you can take:

  • Monitor the attorney's actions and the financial transactions they make.

  • Ensure that the attorney understands their obligations under the Mental Capacity Act 2005 and the Code of Practise.

  • Contact the Office of the Public Guardian if you have concerns about the attorney's behaviour.

If a third party, such as a bank, activates an LPA without the consent or knowledge of the person or their relevant medical personnel, it is a clear breach of trust. It is vital to make clear to banks that they must take responsibility for such actions.

Dealing with Incapacity: The Role of Deputies

When an individual loses the capacity to manage their own affairs and has not established a Lasting Power of Attorney (LPA), the Court of Protection may intervene by appointing a deputy. Deputies are often relatives or friends deemed suitable by the court, but in some cases, a professional such as a solicitor may be appointed.

Deputies are primarily appointed for property and financial affairs, which is the most common form of deputyship. However, personal welfare deputyship is granted only in exceptional circumstances, such as when regular treatment is necessary and no LPA is in place.

  • Property and Affairs Deputyship: Manages financial matters and property decisions.

  • Personal Welfare Deputyship: Makes decisions about care and treatment in exceptional cases.

It's crucial to understand that the Court of Protection does not typically appoint deputies for ongoing health decisions unless there is a clear and ongoing need for regular treatment.

Seeking Professional Advice from LPA Solicitors

When considering a Lasting Power of Attorney (LPA), it's crucial to seek professional advice to navigate the complexities of UK law. Solicitors specialising in LPAs can provide invaluable guidance, ensuring that your health and welfare are in trusted hands. They can assist with understanding the nuances between a Health and Welfare LPA and a Property and Financial Affairs LPA, and the importance of choosing the right attorney.

Here are some reasons why professional advice is essential:

  • Expertise in estate planning and the creation of Wills.

  • Knowledge of potential disputes and how to avoid them.

  • Assistance with complex decisions, such as those involving life-sustaining treatment.

  • Fixed fee services for cost transparency.

Remember, an LPA is more than just a legal document; it's a plan for your future. Don't hesitate to reach out to experienced solicitors who can help you with every step, from drafting to registration.

Navigating the complexities of Lasting Powers of Attorney (LPA) can be daunting, but it's a crucial step in safeguarding your future. At East Sussex Wills, we specialise in providing expert guidance and personalised solutions for all your estate planning needs, including the establishment of LPAs. Don't leave your future to chance; visit our website to learn more about how we can assist you with your LPA requirements and ensure your peace of mind. Our team is ready to offer you a free quotation and answer any questions you may have.

Conclusion

In summary, the Health Power of Attorney in UK law plays a crucial role in safeguarding an individual's health and welfare, as well as their property and financial affairs, should they lose the capacity to make informed decisions. The Lasting Power of Attorney (LPA) allows for the appointment of trusted individuals to act on one's behalf, ensuring that personal care and financial matters are handled according to their wishes. With the ability to choose between a Health and Welfare LPA and a Property and Financial Affairs LPA—or to implement both—individuals have the flexibility to tailor the level of control and protection they desire. It is essential to understand the implications, costs, and processes involved in setting up an LPA, and to consider seeking professional legal advice to navigate these important decisions. Ultimately, an LPA provides peace of mind, knowing that one's affairs will be managed with care and respect, even in times of incapacity.

Frequently Asked Questions

What is a Lasting Power of Attorney (LPA) in the UK?

A Lasting Power of Attorney is a legal document that allows an individual, known as the donor, to appoint one or more people, known as attorneys, to make decisions on their behalf if they lose the capacity to do so themselves. There are two types of LPA: Health and Welfare, and Property and Financial Affairs.

Who can create a Lasting Power of Attorney?

Any person with the capacity to make informed decisions, known as 'having capacity', can create an LPA. This ensures that someone they trust can manage their affairs if they become unable to do so due to accident, illness, or injury.

What decisions can a Health and Welfare Attorney make under an LPA?

A Health and Welfare Attorney can make decisions about the donor's daily routine (e.g., washing, dressing, eating), medical care, living arrangements, life-sustaining treatment, social activities, and who the donor should have contact with.

Can a Property and Financial Affairs Attorney act while the donor still has capacity?

Yes, a Property and Financial Affairs Attorney can act while the donor retains capacity, but only with the donor's consent. This LPA allows the attorney to deal with the donor's property and finances as specified.

What is the process for registering an LPA and what are the costs?

To register an LPA, it must be completed with the necessary legal formalities and then sent to the Office of the Public Guardian for registration. The registration fee in England and Wales is £82 per LPA, so registering both types would cost £164.

What can I do if I'm concerned about an Attorney's actions under an LPA?

If there are concerns about an Attorney's behaviour or actions, the concerned party can contact the Office of the Public Guardian, who will investigate the matter and take appropriate action if necessary.

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